Sobh v Commissioner of Police, NSW Police Force

NCAT Administrative and Equal Opportunity|2022-02-08

Background

Mr Adam Sobh (the Applicant) applied to this Tribunal on 9 March 2021 for review of a decision by the Commissioner of Police, NSW Police Force (the Respondent) on 24 November 2020 to revoke his Category AB firearms licence and his Category H probationary pistol licence (firearms licences). The grounds for revocation were twofold. The first related to the Applicant advising a police officer that the reason for acquiring a pistol licence was that he would like to be prepared for anything and that he wanted to learn how to defend himself. The second reason was that the Respondent had been informed by the owner of a shooting range and pistol club that they had refused to allow the Applicant to join the club, feeling that he was a safety risk as he was unable to communicate effectively and follow instructions.
The Applicant applied for an internal review of the decision, and it was not disputed that the Applicant was not notified of the outcome of the review within 21 days and accordingly, that the review was taken to have been finalised under s 53(9)(b) of the Administrative Decisions Review Act 1997 (ADR Act).
On 9 September 2021, Senior Member Walker made certain confidentiality orders pursuant to s 59 of the ADR Act and s 49(2) and s 64(1)(b), (c) and (d) of the Civil and Administrative Tribunal Act 2013 (CAT Act), (Sobh v Commissioner of Police [2021] NSWCATAD 260). The matter came on for hearing on 8 February 2022. At the conclusion of the open hearing, a confidential hearing was held pursuant to s 49(2) of the CAT Act.

Applicable legislation

The general principles and objects of the Firearms Act 1996 (the Act) are set out in s 3 as follows: (1) The underlying principles of this Act are - (a) to confirm firearm possession and use as being a privilege that is conditional on the overriding need to ensure public safety, and (b) to improve public safety - (i) by imposing strict controls on the possession and use of firearms, and (ii) by promoting the safe and responsible storage and use of firearms, and (c) to facilitate a national approach to the control of firearms. (2) The objects of this Act are as follows - (a) to prohibit the possession and use of all automatic and self-loading rifles and shotguns except in special circumstances, (b) to establish an integrated licensing and registration scheme for all firearms, (c) to require each person who possesses or uses a firearm under the authority of a licence to prove a genuine reason for possessing or using the firearm, (d) to provide strict requirements that must be satisfied in relation to licensing of firearms and the acquisition and supply of firearms, (e) to ensure that firearms are stored and conveyed in a safe and secure manner, (f) …
Section 11 of the Act relevantly provides: 11 General restrictions on issue of licences ... (3) A licence must not be issued unless - (a) the Commissioner is satisfied that the applicant is a fit and proper person and can be trusted to have possession of firearms without danger to public safety or to the peace, and ... (7) Despite any other provision of this section, the Commissioner may refuse to issue a licence if the Commissioner considers that issue of the licence would be contrary to the public interest.
Section 12 of the Act provides that: (1) The Commissioner must not issue a licence that authorises the possession and use of a firearm unless the Commissioner is satisfied that the applicant has a genuine reason for possessing or using the firearm. (2) An applicant does not have a genuine reason for possessing or using a firearm if the applicant intends to possess or use the firearm for any of the following reasons - (a) personal protection or the protection of any other person, (b) the protection of property (other than in circumstances constituting a genuine reason as set out in the Table to this section). (3) Subsection (2) does not limit the reasons which the Commissioner may be satisfied are not genuine reasons for the purposes of justifying the possession or use of a firearm. (4) Subject to this Act, an applicant for a licence has a genuine reason for possessing or using a firearm if the applicant - (a) states that he or she intends to possess or use the firearm for any one or more of the reasons set out in the Table to this section, and (b) is able to produce evidence to the Commissioner that he or she satisfies the requirements specified in respect of any such reason.
The Table to s 12 of the Act relevantly includes the following genuine reasons and requirements for possessing a firearms licence: Reason: sport/target shooting The applicant must be a current member of a shooting club approved by the Commissioner in accordance with the regulations, and which conducts competitions or activities requiring the use of the firearm for which the licence is sought. Reason: recreational hunting/vermin control The applicant must - (a) be the owner or occupier of rural land, or (b) produce proof of permission given by the owner or occupier of rural land, or by an officer or employee of the National Parks and Wildlife Service, the Department of Industry or other authority prescribed by the regulations, to shoot on rural land, or (b1) produce proof of permission given by a land manager within the meaning of the Forestry Act 2012 to shoot on land in respect of which the land manager is authorised to exercise functions as land manager under that Act, or (c) be a current member of a hunting club approved by the Commissioner in accordance with the regulations. The regulations may provide for the manner and form in which any such permission is to be given, the extent to which it operates, and how it is to be produced as evidence by the applicant. A person does not, so long as the person is authorised to give permission to shoot on land referred to in paragraph (b) or (b1), incur any liability merely because the person gives the applicant permission to shoot on the land concerned.
Section 24 of the Act sets out the various grounds on which a licence may be revoked and include the following: (2) A licence may be revoked - (a) for any reason for which the licensee would be required to be refused a licence of the same kind, or … (d) for any other reason prescribed by the regulations.
Clause 20 of the Firearms Regulation 2017 (the Regulation) provides that "[t]he Commissioner may revoke a licence if the Commissioner is satisfied that it is not in the public interest for the licensee to continue to hold the licence".

The evidence

The matter was heard by audio visual link. The Respondent relied on the s 58 documents (exhibit R1), the documents in the Supplementary Bundle (exhibit R7), confidential exhibits CR3 and CR4, the medical records produced under summons by N.Health Clinic Pty Ltd trading as HealthCare Greenacre (exhibit R5) and further medical records produced under summons by N.Health Clinic Pty Ltd trading as HealthCare Greenacre being a report by Dr Sydney Oen, Consultant Psychiatrist (exhibit R6). The Respondent also relied on the open statement of Senior Constable Nathan Dechaufepie (exhibit R2) and a further statement of Senior Constable Dechaufepie (exhibit R8). The documents were tendered without objection. Senior Constable Dechaufepie gave evidence and was cross-examined.
The Applicant relied on his Affidavit dated 30 August 2021 (exhibit A1) and an Initial Assessment Report dated 13 September 2021 by Jouman Dennaoui, Speech Pathologist (exhibit A2). The Applicant gave evidence and was cross-examined.
During the hearing, reference was made to a Firearms Registry form that a person with a medical disability that prevented them from using longarm weapons could apply for a permit to allow them to use a pistol for the purposes of hunting. It was not suggested that the Applicant made such an application or possessed such a permit. Following the hearing and by consent, a copy of the Pistol Permit Legitimate Reason Form was provided to the Registry on behalf of the Applicant and copied to the Respondent. This has been marked for identification as MFI A.

Confidential Hearing

At the conclusion of the open hearing, a confidential hearing was held pursuant to s 49(2) of the CAT Act. No further evidence was adduced in the confidential hearing.

Applicant's submissions

Mr McGirr's submissions on behalf of the Applicant were made orally at the hearing. He submitted that the Applicant was of good character and sought to comply with all laws. Mr McGirr referred to the statement from Ms Linda Yammine, the Club Captain of the Harley Crescent Pistol Club and owner of the Condell Park Indoor Firearms Range (Condell Park Range) taken on 28 October 2021 and annexed to the statement of Senior Constable Dechaufepie (exhibit R8) and to Senior Constable Dechaufepie's previous conversation with her. Mr McGirr submitted that Ms Yammine did not tell the Applicant that she was refusing him entry to the club but instead said in her statement that she felt sorry for him and that she told the Applicant that her club was full but that he might be able to find another club to join. The Applicant's evidence was that he had spoken to her when he paid the money to the club for his gun storage and that she had been nice to him. Mr McGirr submitted that Ms Yammine's statement was of little value and "reeks of discrimination".
Mr McGirr submitted that the purpose of the Applicant attending to see Senior Constable Dechaufepie at Bankstown Police Station on 10 November 2020 was to discuss the storage of his firearm and that it was not for the purpose of being interviewed by police. It was submitted that the Applicant's statement as set out at paragraph 20 of Senior Constable Dechaufepie's statement related to the Applicant defending himself from wild animals and that wild pigs are very aggressive and given the Applicant's condition, his difficulty in running away gave credence to his explanation of self-protection against wild animals. The point that was being made by the Applicant during his evidence was that he could hold a rifle but that it was easier to use a pistol for hunting.
It was submitted that there was no information available that the Applicant was a risk to society, and he had complied with all licencing and storage requirements. As an example of this, when he was called and asked to attend the police station by Senior Constable Dechaufepie, he immediately did. If there were any current concerns about Ziyad and his partner, the evidence was that they no longer resided at the same premises as the Applicant. Reference was made to the Applicant having had his membership of the Falcon Pistol Club cancelled for failure to attend for the mandatory participation, and to the letter from SSAA NSW (part exhibit R7) that the Applicant had not attended any activities. It was submitted that the Applicant had explained his non-attendance due to Covid and there was no reason for the Applicant to attend a club if his licence was suspended.

Respondent's submissions

Written submissions were filed on behalf of the Respondent on 12 November 2021 and oral submissions were made at the hearing by Mr Zoppo, the solicitor for the Respondent. The Respondent submitted that it would be contrary to the public interest to allow the Applicant to continue to hold the firearms licences and relied on the following: 1. The Applicant's failure to establish or maintain genuine reasons for possessing or using a firearm 2. The Applicant is not a current member of a shooting club or hunting club 3. The Applicant had failed to comply with participation requirements 4. The Applicant intended to use a firearm for personal protection 5. The Applicant's health and medical history 6. The Applicant's domestic circumstances.
It was submitted that the evidence available to the Tribunal does not establish that there is "virtually no risk" to public safety if the Applicant continues to hold the firearms licences. The domestic circumstances of the Applicant raise serious concerns for public safety in relation to access to firearms and their safe storage and are such that there would be an unacceptable level of risk to the public if firearms were permitted to be stored at the property where the Applicant resides. It was submitted that the decision of the Respondent should be affirmed.
In oral submissions, Mr Zoppo referred to Ms Yammine's statement and submitted that whilst she made up an excuse to the Applicant about the club being full, this does not take away from her observations in relation to the Applicant's ability to safely use firearms and the concerns that she had about him. Ms Yammine runs a shooting club and had nothing to gain and was only concerned about safety.
In relation to the Applicant's reference in cross-examination to a form that could be filled out to allow a pistol to be used for hunting, Mr Zoppo submitted that there was a restriction on using pistols for hunting, but a permit could be granted in certain circumstances when a person was unable to safely use longarms. The Act expressly states that personal protection is not a genuine reason for possessing or using a firearm. Mr Zoppo referred to the Applicant's explanation in oral evidence that his reference to using the pistol to defend himself was because he had recently found out he could apply for this permit and that that it was implied that he was referring to being attacked by wild animals. It was submitted that the Applicant's evidence was that he had only found about the permit some weeks ago, and accordingly, this explanation should be given little weight as the Applicant was not aware of it when he spoke to Senior Constable Dechaufepie.
This conversation was captured by the Officer's body worn video and that whilst the Applicant may have a stutter, it does not affect the words chosen by him and the Applicant clearly referred to wanting to learn how to defend himself. Mr Zoppo referred to the medical records which suggested that the Applicant had been subject to significant bullying whilst at school.
In relation to the mandatory participation requirements, it was submitted that the Applicant's explanation that he did not attend due to concerns about COVID was only relevant from 2020. The Applicant had given evidence that he was anxious about transporting the rifle in his car as he was afraid that if he went driving with it, he would be stopped by police and that officers would not understand what he was saying. Mr Zoppo submitted that this was not going to change and referred to the report of Dr Musa which made clear that the Applicant would require support for the rest of his life. It was submitted that the opinion expressed by Dr Musa in the Medical Risk Assessment that in his medical opinion there was no risk from the Applicant's impairments in relation to firearms was in stark contrast to the opinion expressed by him at Item 6 of the Health Professional Declaration. Without more recent medical evidence, there were doubts about the Applicant's capacity to use a firearm.
Reference was made to Schedule 2 of the Regulation that at the time of the hearing allowed additional time for mandatory requirements due to the COVID-19 pandemic. It was also clarified that the Applicant held a current drivers licence and that in the report from Dr Oen, he had opined that the Applicant had no psychomotor retardation.

CONSIDERATION

As referred to above, the Respondent relies upon a number of factors in support of the contention that the restoration of the Applicant's firearms licences would be contrary to the public interest.

Role of the Tribunal

Section 75(1)(c) of the Act confers jurisdiction on the Tribunal for administrative review of the Respondent's decision pursuant to s 9 of the ADR Act. Section 63 of the ADR Act provides that in determining an application for review, the tribunal is to make the correct and preferable decision having regard to the material then before it, and any applicable written or unwritten law. The tribunal makes its own decision in place of that of the Respondent and there is no presumption that the decision of the Respondent is correct: McDonald v Director-General of Social Security (1984) 1 FCR 354 at 357. In doing so it may exercise all of the functions conferred or imposed by any relevant enactment. There is no onus of proof: Nakad v Commissioner of Police, New South Wales Police Force [2014] NSWCATAP 10 [28]-[30], [34]. In an application for review the tribunal is not restricted to a consideration of the material that was before the decision maker, but may have regard to any relevant material before it at the time of the review: Shi v Migration Agents Registration Authority [2008] HCA 31.

Public Interest

The phrase "public interest" is not defined in the Act. In O'Sullivan v Farrer [1989] HCA 61; (1989) 168 CLR 210, [13], the High Court held that the "public interest" imported a discretionary value judgment to be made by reference to undefined factual matters, confined only in so far as the subject matter and the scope and purpose of the legislation might require. In Commissioner of Police, New South Wales Police Service v Toloeafoa [1999] NSWADTAP 9, [25], which dealt with the revocation of a security licence, the Appeal Panel described the public interest ground in the relevant Act in the following terms: [A]n inherently broad concept giving the [Commissioner] the ability to have regard to a wide variety of factors in choosing whether to exercise a discretion adversely to an individual. As the possibility of refusing an application on the ground of character is dealt with elsewhere in the same section, it is reasonable to infer that the Parliament intended that the public interest discretion operate in areas to which the character ground was not relevant or, possibly, in circumstances where an objection on character grounds would not be sufficient in its own right to warrant refusal.
The concept does include standards acknowledged to be for "the good order of society and for the well-being of its members": Director of Public Prosecutions v Smith [1991] Vic Rep 6; (1991) 1 VR 63. In Comalco Aluminium (Bell Bay) Ltd v O'Connor (1995) 131 ALR 657, 681, the High Court said: The purpose of the reference to public interest is to ensure that private interests are not the only matters taken into account: to make clear that the interests of the whole community are matters for the Commissioner's consideration. The effect of the reference is to amplify the "scope and purpose" of the legislation.
The issue of public interest allows for matters going beyond the applicant's character to be taken into account. They include public protection, public safety and public confidence in the administration of the licensing system: Constantin v Commissioner of Police, New South Wales Police Force [2013] NSWADTAP 16, [33]. In the present context and given the objects of the Act as explicitly and emphatically stated in s 3(1), the primary consideration in relation to the public interest must be public safety. The Applicant's personal interest in retaining his licence is subordinate to the public interest in ensuring public safety.
In a familiar passage, Hennessy DP in Ward v Commissioner of Police, New South Wales Police Service [2000] NSWADT 28, [28] said that in terms of public safety, "the Tribunal must be satisfied that there is virtually no risk", while acknowledging that the Tribunal could never be totally satisfied that a person would never pose any risk to public safety. Ward was a case on the "fit and proper person" test, but the formulation has been held to apply to the public interest test as well: Hoffman v Commissioner of Police, New South Wales Police Service [2003] NSWADT 89, [23]; Masterson v Commissioner of Police, New South Wales Police Force [2017] NSWCATAP 206, [130].
Since then, Hennessy DP has cautioned against applying that language in a mechanistic way, pointing out in AML v Commissioner of Police, New South Wales Police Force [2013] NSWADT 5 that that the Ward decision itself had set aside the Commissioner's decision to revoke a firearms licence because her Honour was satisfied that despite the fact that he had assaulted his partner, he was a fit and proper person to have a firearms licence. "The 'virtually no risk' comment was made in the context of the 'fit and proper person' test. It should not be understood as a judicial gloss on the plain meaning of that test, or of the reasonable cause test. The relevant tests are set out in the Firearms Act and comments in cases should not be substituted for those tests" at [7].
Other cases have pointed out that the question of risk is not to be viewed as requiring an applicant to discharge an almost impossible burden of proving a near-absolute negative, but in a nuanced way, taking account of all the circumstances, including attitudes, character and prior conduct, with an overriding focus on public safety: Martin v Commissioner of Police, New South Wales Police Force [2017] NSWCATAD 97, [64] - [66]. Thus, in Webb v Commissioner of Police, New South Wales Police Service [2004] NSWADT 110, [32], Montgomery JM when considering the question of public safety, stated that "In determining this issue it is my view that it is necessary to adopt a balanced view of the risk, bearing in mind all the relevant circumstances. Only real and appreciable risk needs to be taken into account. Minimal, fanciful or theoretical risk can be excluded from consideration".

Genuine reasons for having a licence

Section 12 of the Act provides that a licence to possess and use a firearm must not be issued unless the Respondent is satisfied that the applicant for the licence has a genuine reason for possessing or using the firearm. The evidence establishes that the Respondent issued the Applicant with a Category AB firearms licence on 5 April 2019 for the genuine reason of sport/target shooting and recreational hunting/vermin control and that the Respondent issued the Applicant with a Category H probationary pistol licence on 10 November 2020 for the genuine reason of sport/target shooting. It was not contested that at the time the Respondent issued each of the firearms licences to the Applicant that the Respondent was satisfied that the Applicant had a genuine reason for possessing and using a firearm.
Clause 15(1) of the Regulation prescribes that if a licensee's genuine reason for possessing or using a firearm can no longer be established by the licensee, the licensee must within 14 days after becoming aware of no longer having that genuine reason, notify the Respondent of that fact in writing or in such other manner as may be approved. There was no suggestion by either party that the Applicant made any such notification to the Respondent.
In his Affidavit (exhibit A1), the Applicant states that his genuine reasons for obtaining Category A, B and H firearms licenses were for the purpose of pursuing his dream of recreational hunting and target shooting as a member of a club and that he had undertaken an extensive amount of preparation to ensure he complied with the regulatory and safety requirements. It was not in dispute that the Applicant had complied with all relevant requirements to obtain his firearms licences.

Compliance with participation requirements

Clause 29 of the Regulation provides that a licence issued for sport/target shooting is subject to a condition that the licensee must comply with any applicable requirements of Part 10 (Participation requirements for club members). Clauses 107 and 109 of the Regulation set out the participation requirements for sports/targets shooters and members of hunting clubs.
The application for the Category AB firearms licence submitted by the Applicant dated 11 February 2019 indicated that his principal shooting club and principal hunting club was St Marys Indoor Shooting Centre. The application for the Category H firearms licence submitted by the Applicant dated 18 October 2019 indicated that the Applicant was a member of the Falcon Pistol Club. Other than the application by the Applicant for his Category AB firearms licence there is no evidence before the Tribunal in relation to the Applicant attending the St Marys Indoor Shooting Centre or his ongoing membership of that club.
The letter from the Membership Officer of the Sporting Shooters Association of Australia (NSW) (SSAA NSW) dated 22 October 2021 (part exhibit R7) establishes that the Applicant joined SSAA NSW on 6 February 2019 and that his membership was to expire on 28 February 2022. During this period which covered four attendance years, including the attendance year from 1 April 2019 through to 31 March 2020, there are no longarm attendances listed for the Applicant for the activities of either "Target" or "Hunting". As referred to above, the Applicant's firearms licences were revoked on 24 November 2020.
The email from the Falcon Pistol Club dated 20 November 2020 (part exhibit R1) establishes that the Applicant joined the club on 5 December 2019 and his membership was valid until 31 October 2020. As of 20 November 2020, the Applicant had not been back to the Falcon Pistol Club since he joined, and his membership had been cancelled.
The Applicant does not dispute that he did not carry out any longarm activities after obtaining his licence on 5 April 2019 and this is reflected in the records from SSAA NSW, including for the Attendance Year from 1 April 2019 to 31 March 2020. It follows that the Applicant did not comply with the participation requirements for his Category AB firearms licence for this period. Whilst the Applicant also did not complete any longarm activities after this date, the Firearms Amendment (COVID-19 Regulation) 2020 that commenced on 15 April 2020 made temporary modifications to the participation requirements under the Regulation.

Current member of a shooting club or hunting club

The Table to s 12 of the Act prescribes as requirements to establish the genuine reasons of sport/target shooting and recreational hunting/vermin control respectively, that a firearms licensee must be a current member of a shooting club or hunting club. The evidence establishes that the Applicant's membership of the Falcon Pistol Club was valid until 31 October 2020 and that his membership had been cancelled. When interviewed by Senior Constable Dechaufepie on 20 November 2020, the Applicant told him that he was a member of SSAA NSW but was not a member of a hunting club. As referred to above, no evidence was adduced in relation to the Applicant's ongoing membership of the St Marys Indoor Shooting Centre.
The evidence of Ms Yammine (part exhibit R8), the Club Captain of Harley Crescent Pistol Club and the owner of Condell Park Range was that in late 2020 she was concerned about the Applicant's reasons for joining a pistol club and she felt that he would pose an unacceptable safety risk on her range. She said that as she felt sorry for him, she told him that her club was full but that he might be able to find another club to join. Whilst the Applicant said that this conversation did not occur, he stated that he had given money to Ms Yammine for firearms storage at Condell Park Range and that she was nice to him. I find that whilst Ms Yammine held concerns about the Applicant, her statement is to the effect that she never advised him directly of the concerns or told him that he was refused entry to that Club. On that basis, I accept that the Applicant was unaware that he had been refused entry to the Harley Crescent Pistol Club. It was not disputed that he was not a member of that Club.
I find that at the date of the hearing, there is no evidence of the Applicant being a member of a shooting club, hunting club or pistol club but that he was a member of SSAA NSW.

Category H probationary pistol licence

An interview was conducted by Senior Constable Dechaufepie with the Applicant at Bankstown Police Station on 10 November 2020 and recorded on the Applicant's body worn video camera (Recording). A copy of the Recording is contained in the USB annexed to the Officer's statement (exhibit R8). At paragraph 20 of his statement, the Officer sets out the following part of the conversation in the Recording with the Applicant: [Officer]: What made you want to get into the pistol shooting? [Applicant]: Well, it would be a new hobby, something to do, something different, something to learn and honestly, honestly I would like to be prepared for anything, and I don't mean that in a defensive way or anything or any type of incite of violence, I just want to learn how to defend myself as well. [Officer]: Mmm [Applicant]: Yes but mainly for hobby and target shooting.
Earlier in the Recording, Senior Constable Dechaufepie had been asking questions about the Applicant's Category AB firearms licence, including how long he had held the licence. The Applicant said that he was not sure but thought it was towards the end of the last year. He agreed with the Officer that he had only recently obtained it. The Applicant told the Officer that he had not been hunting or used the rifle since he got it because of Covid. He told Senior Constable Dechaufepie that he had cerebral palsy that affects his left leg and that his left arm and left leg were a bit shorter but agreed that it did not affect his ability to hold a firearm.
In his application for a Category H firearms licence, the Applicant nominated the genuine reason of sport/target shooting and relied on his membership of the Falcon Pistol Club. The Applicant was granted a probationary pistol licence on 10 November 2020. Under the Act, recreational hunting is not a genuine reason for this category of licence.
In his Affidavit, the Applicant stated that he believed that his response to Senior Constable Dechaufepie about defending himself had been mischaracterised by police. He stated that what he meant by these statements was that regardless of whether he was handling a pistol or rifle, he wanted "to be well-prepared in relation to the safe-handling of a rifle and a pistol as well as how to comply with the relevant regulations that apply to each firearm".
Mr Zoppo referred to this portion of the interview in cross-examination of the Applicant and put to the Applicant that it would be useful to have a pistol and licence to defend himself if attacked. The Applicant denied this and said that he had recently found out that he could apply for a disability form for hunting and that is what he meant. When asked by Mr Zoppo why he had used the expression to "defend myself", the Applicant said that what he "meant was from animals, being attacked by a wild animal". Mr Zoppo then asked him about why he would use the term to defend himself from an attack by wild animals if the primary purpose of the licence was target shooting. The Applicant stated that he had recently found out from the shooting range that if he had a disability, the licencing laws meant that he could shoot with a handgun whilst hunting. This was a secondary reason and not the main reason.
The Applicant said that he had found out about the form "a couple of weeks ago". Mr Zoppo clarified that this was a couple of weeks ago from the hearing date and the Applicant said yes. Mr Zoppo put to him that in 2020 he was not aware that it was possible for a permit to be issued to people with disabilities to use a pistol for hunting. The Applicant agreed and said that he was never told about it by the shooting range or the police. He said that the primary reason for the pistol licence was for target shooting. He agreed that he did not know about the form in 2020 and said it was not mentioned.
Mr Zoppo put to the Applicant that when he referred to defending himself, he meant for his own personal protection. The Applicant said that it meant defending himself from wild animals and that this was implied as he is not a malicious person. Mr Zoppo later clarified that the form the Applicant was referring to was one that allowed the use of a pistol if a person was unable to use a longarm rifle because of a medical condition. The Applicant said that the form just says disability and is not specific. When asked if the Applicant was saying that his disability meant that he was not able to use a longarm, the Applicant said that he could hold a rifle, but that it was not as easy as a pistol.
When asked why he had not used the longarm, the Applicant replied that it was because his oldest brother was afraid that if the Applicant was caught with it in the car while he was driving to the target shooting range that his firearm would be taken away from him as he would not be able to properly explain it to police. The Applicant reiterated that he could hold a rifle but that it was not as easy as a pistol. He said that the other reason he could not go was because of Covid. The Applicant then agreed that he had never shot a rifle and when asked if he would know if he was able to physically use it, he said he would have to use it to find out.
The Applicant said in his Affidavit that he believed that he was being discriminated against because of his disabilities which adversely affect his verbal communication. He stated that he can sometimes uncontrollably stutter if he uses too many words and needs to use short sentences and fewer words to avoid the stutter. This can make him self-conscious and cause him to be misunderstood or misconstrued. He stated that the police were aware of his disability and have witnessed his speech difficulties. He said that they did not offer him alternative communication options and kept peppering him with questions which made him nervous, and this triggered his stuttering. The Applicant also said that he believed if he had the opportunity to respond to the Officer's questions in writing, he would have been better placed to respond with appropriate detail and context. To his mind, the police have in effect said that his disability is a safety risk without any proper foundation.
I accept that the medical evidence establishes that the Applicant has been diagnosed with stuttering. The report of Jouman Dennaoui (exhibit A2) says that negative thoughts, experiences and anxiety can often co-exist with stuttering. These do not play a causal role but can increase stuttering. In his evidence, the Applicant agreed that his stutter does not affect his choice of words but affects how they are delivered, and I accept this.
In the Recording, Senior Constable Dechaufepie told the Applicant at the outset that he was not under arrest and that he was free to leave at any time. Whilst the Officer asked the Applicant a number of questions throughout the interview, there was a number of pauses between the questions as he was making notes of the Applicant's responses. Accordingly, I do not accept that the Officer was "peppering" the Applicant with questions. The Applicant also asked the Officer various questions throughout the Recording, including the reason why the special condition had been imposed. Whilst the Applicant occasionally stuttered, including in his reference to defending himself, his responses and questions can be understood. Towards the end of the Recording and immediately prior to the conversation extracted in the Officer's statement, it was the Applicant who asked Senior Constable Dechaufepie a question about the re-application process for a pistol licence and it was after this exchange that the Officer asked him what made him want to get into pistol shooting.
In his Affidavit, the Applicant stated that under no circumstances did he mean that he wanted to use firearms to defend himself against other people. The Applicant makes no reference in the Recording or the Affidavit to hunting with a pistol or that the reference to defending himself related to an attack by wild animals. The Applicant did not provide an explanation as to why he was seeking a "new hobby" or "something to do".
The Applicant's evidence in relation to this statement to Senior Constable Dechaufepie was confusing and at times contradictory. It was not in dispute that there is a form (MFI A) that allows a person to apply for a permit to use a pistol if they have a disability that prevents them from using longarm firearms. However, I find that neither this form, nor the existence of such a permit, is relevant to this matter as the Applicant did not submit such a form to the Respondent and was not aware of the existence of such a form or permit on 10 November 2020, and only became aware a couple of weeks prior to the hearing.
The Applicant had held a Category AB firearms licence for sport/target shooting and recreational hunting/vermin control since 5 April 2019, and as of 10 November 2020 had held that licence for some 19 months. Given that the Applicant had not used his rifle during this time, it is not clear why he was seeking a "new hobby" or "something to do". In any event, it cannot be said that hunting would have been a "new hobby" for him at that time as he had held his Category AB firearms licence that included the genuine reason of hunting since April 2019.
In the circumstances of this case, I find that the Applicant's words to Officer Dechaufepie, and in particular that he "would like to be prepared for anything" and that "I just want to learn how to defend myself as well" were clear and they carry their plain English meaning. Given that the question related to pistol shooting and the sole reason that the Applicant had applied for, and the sole reason that he had been issued with, the Category H probationary pistol licence was for the genuine reason of sport/target shooting, I am satisfied that in his response the Applicant was referring to using a pistol for personal protection.

Reasons for not using firearms

As referred to above, the Applicant had held his Category AB firearms licence for some 19 months as of 10 November 2020. He told Senior Constable Dechaufepie that he had cerebral palsy and agreed that this did not impair his ability to hold a firearm. He advised him that he had not used his firearm for hunting or for target shooting due to Covid.
The Applicant stated that he whilst he held a hunting licence, he was not a member of a hunting club, he did not have rural property and did not have friends with rural property. When asked by Senior Constable Dechaufepie about his plans for hunting in light of the special condition in relation to storage, the Applicant outlined the process for obtaining his firearm from Condell Park Range where he was going to store the weapon and advised that he could only access it when the Range was open. He said that he was planning to go hunting in the NSW area, wherever was closest, and that he needed to get a hunting permit. When asked if he planned to go hunting on his own, he indicated that he was not sure and was waiting for Covid to die down. He said that he was still learning about hunting and that a friend of his brother Ziyad, who he thought was called "Jimmy", had been hunting most of his life. Even though Jimmy did not hunt any more, the Applicant thought that Jimmy would go with him and give him tips.
He told the Officer that he planned to hunt for "a day max" and that he would slowly get used to it as it was a new thing. He had not made plans for alternative storage if the Condell Park Range was closed but would think about it. Senior Constable Dechaufepie asked the Applicant if he had considered the target shooting option and he replied that he had thought about it "heaps" but that he was really wary of Covid.
In his Affidavit, the Applicant clarified that when he said "a day max" he was referring to the length of the hunting trip on weekends, usually on a Saturday, every couple of weeks. The Condell Park Range was open until late during the week and also on Saturday if required. He said that he did not believe there was anything unusual about this statement. The Applicant also clarified that Jimmy was the nickname of a family friend, Anass Ouallah.
The Respondent relied on documentary evidence from the Firearms Registry and the Department of Primary Industries (DPI) (part exhibit R7) to establish that Anass Ouallah has never held a firearms licence or permit in New South Wales, or a New South Wales Hunting Licence issued by the DPI. This evidence was not contested by the Applicant and Mr Ouallah did not give evidence or provide a statement. Whilst this evidence raises suspicions in relation to the Applicant's claim that he intended to go hunting with Mr Ouallah, the fact that Mr Ouallah has never held a firearms licence or hunting permit in New South Wales, does not necessarily preclude him having held such licences in other jurisdictions, either in Australia or elsewhere. This would be consistent with the Applicant telling Senior Constable Dechaufepie that Mr Ouallah did not hunt any more but that he was sure that he would go with him and give him some tips. The Applicant did not refer to Mr Ouallah having a firearm or that he would be hunting.
In cross-examination, Mr Zoppo asked the Applicant whether it was fair to say that he had never been to any pistol club activities or any hunting activities. The Applicant confirmed that he understood the question and as he had explained during the interview, he had not done so due to Covid. The Applicant agreed to Mr Zoppo's assertion that since being issued his Category AB firearms licence in April 2019 and up until the day of the hearing, the Applicant had not undertaken one shooting or hunting activity relating to this licence. He then said that the reason for this was that he was afraid that if he went out driving with his firearm in the vehicle that the police would pull him over and because of his stutter would not understand him. He said that he had kept his firearm in the safe at all times.
As referred to previously, when Mr Zoppo was cross-examining the Applicant the Applicant said that had not used his rifle because his oldest brother was afraid that if the Applicant was caught with it in the car while he was driving to the target shooting range that his firearm would be taken away from him as he would not be able to explain it properly. He said that the other reason was because of Covid.
In cross-examination, Mr Zoppo made reference to the Applicant's medical records that included comments about anxiety in public. The Applicant said that he was able to go shopping with his mother and that whilst he does get anxious, he pushes through it. He denied that anxiety might affect him mingling with people that he does not know, such as at the shooting range and said that he was anxious about being pulled over by the police due to his stuttering. The Applicant agreed that he has panic attacks but stated that he is managing them. The panic attacks sometimes occur at home and sometimes out of home He said they were infrequent and did not always happen.
The Respondent submitted that the COVID-19 pandemic was not an issue until 2020 and I accept this to be the case. This leaves a period of approximately nine months from 5 April 2019 to 31 December 2019 where the Applicant could have engaged in sport/target shooting or hunting without being concerned by Covid. The only explanation other than Covid that was given by the Applicant was his anxiety and the fear of his oldest brother about the Applicant transporting the firearm from his home to the shooting range due to his stutter. The Applicant did not provide any details as to the timeframe during which he was affected by this anxiety and did not refer to it all in his interview with Senior Constable Dechaufepie on 10 November 2020 nor in his Affidavit. In his evidence, he denied that he was anxious about mingling with people at the shooting range and that his anxiety related to being pulled over by police due to his stuttering.
There is no reference in any of the Applicant's medical records to him having spoken to any health professional in relation to his concerns about his stuttering when transporting his firearms or any evidence that the Applicant has sought assistance from a health practitioner in relation to this concern or raised the issue with the Firearms Registry, SSAA NSW, the Falcon Pistol Club or any other shooting club.
Even though the Applicant had not used his firearm or undertaken any activities under his Category AB firearms licence, he applied for his Category H firearms licence on 18 October 2019. There is no evidence that the Applicant considered alternative options for storing his firearms closer to, or at a shooting range, to limit or remove the need to transport firearms in his vehicle. As a consequence of the special condition imposed on his licence, the Applicant made arrangements with Condell Park Range to store his firearm there but had already lodged a review of that decision prior to meeting with Senior Constable Dechaufepie and advised the Officer that he would like to be able to store firearms at his residence.
I have previously found that the Applicant's statement to Senior Constable Dechaufepie was a reference to using a pistol for personal protection. Section 12(2)(a) of the Act provides that an applicant does not have a genuine reason for possessing or using a firearm if the applicant intends to possess or use the firearm for personal protection. The Applicant held a Category AB firearms licence from 5 April 2019 before it was suspended on 23 November 2020 and revoked on 24 November 2020 and did not use his firearm once during that period, even before Covid became a concern. At the time of his interview with Senior Constable Dechaufepie on 10 November 2020, the Applicant was still expressing a desire to undertake target shooting and go hunting, but had not complied with the participation requirements for the Attendance Year ending 31 March 2020 and whilst he was a member of SSAA NSW, there is no evidence that he was currently a member of a shooting club or hunting club.
In the circumstances, I am not satisfied that the Applicant has a genuine reason for possessing or using firearms. Even if the Applicant was able to establish a genuine reason to hold a firearms licence, his reported anxiety about his stuttering whilst transporting firearms and his brother's fear about him doing so, raises significant concerns as whether there is virtually no risk in the Applicant possessing or using firearms.

Health and Medical History

The Respondent was aware of the Applicant's nasal septum deviation, left lower leg weakness, cerebral palsy and stuttering as a consequence of Dr Musa's Medical Risk Assessment dated 13 April 2020 as well as Dr Musa's opinion that these conditions did not affect the Applicant's fitness to possess and use firearms. As referred to above, the Applicant gave evidence that the reasons that he had not undertaken any activities in relation to his Category AB firearms licence included his anxiety and/or his brother's fear about the Applicant transporting his firearm due to his stuttering. The Applicant's evidence also raised some doubts as to whether he could physically use a longarm firearm.
There is no reference to the Applicant suffering anxiety in the Medical Risk Assessment. Dr Musa completed a NSW Fitness to Drive Medical Assessment for the Applicant dated 14 November 2019 (part exhibit R5) in which he indicated that the Applicant did not have mental health issues. It appears from the medical records that a GP Mental Health Care Plan Patient Assessment was completed by Dr Musa on 21 December 2020 and Dr Musa wrote a referral for the Applicant to Psychcentral Psychology in relation to anxiety. There are no records indicating that the Applicant attended Psychcentral.
The medical records include a Cardholder Application Form 2020 (Cardholder Application) in relation to the Applicant. The Cardholder Application contains a copy of a Specialist Assessment Report dated 1 April 2008. This report indicates that as of 1 April 2008, the Applicant had cerebral palsy which permanently affects his body movement and muscle coordination on his left side. The report also includes a reference that the Applicant's family advised that the Applicant has a long history of anxiety and panic attacks and had been on anti-anxiety medication in the past but was not on any at the date of the report. The family reported that the Applicant's self-care skills were limited due to his intellectual and physical disabilities. He was able to manage basic tasks such as combing his hair or brushing his teeth with prompting but was unable to make his bed, clean his room, prepare meals or travel independently.
Item 2 of the Cardholder Application indicates that the Applicant has been diagnosed with cerebral palsy, anxiety and panic attacks. Item 4 relates to the Applicant's need for lifelong assistance and requires an assessment of the assistance required with "minimal" meaning the applicant can perform 75% or more of the tasks, "some" meaning they can complete 50% to 74% of the tasks and "substantial" meaning they can perform 25% to 49% of the tasks. The Cardholder Application indicates that the Applicant requires "some" assistance for mobility, communication and self-care and "substantial" assistance for planning.
Item 6 of the Cardholder Application is the Health Professional Declaration completed by Dr Musa and dated 31 December 2020. Under the heading "Describe the lifelong attendant care required by the applicant to enable them to access community venues and activities", Dr Musa has written the following: [The Applicant] has cerebral palsy from birth. He has intellectual disability, muscle spasticity, weakness of left leg and stuttering. He also has anxiety from new situations and public places. His self-care skills are limited due to his intellectual and physical disabilities.
Dr Musa has indicated that the Applicant requires support for the rest of his life. The Health Professional Declaration completed by Dr Musa includes the following: I verify that the applicant has a significant and permanent disability and will always require attendant care at most community venues and activities.
Also in the medical records is a referral from Dr Musa dated 27 January 2021 for the Applicant to see Dr Oen, Consultant Psychiatrist for an opinion and management in relation to his anxiety. Whilst the referral from Dr Musa notes a medical report of 13 April 2020, it does not refer to a Medical Risk Assessment in relation to the Applicant using and possessing firearms.
The report of Dr Oen dated 26 April 2021 (exhibit R6) indicates that he saw the Applicant on one occasion and that the Applicant has been on the Disability Support Pension for his entire adult life with cerebral palsy. The Applicant reported to him that he was bullied relentlessly over his cerebral palsy at school, and this caused him to limp and to interfere with his ability to speak. After leaving school, he had set up a life where he spends nearly all of his time trying to avoid social contact as he feels so anxious in public. He saw a speech pathologist but with little benefit. The Applicant has never seen a psychologist or psychiatrist in the past and has instead increased his reclusiveness and avoidance. He feels very comfortable at home but has peaks of anxiety and distress when he is forced to go out and this is somewhat easier when he is accompanied by his mother.
Dr Oen's report notes that the Applicant spends all of his time listening to audio books and reading. He has a variety of interests that help him with his depression and isolation. The Applicant has not had any thoughts of self-harm. He does not do any housework because his palsy makes it either difficult or impossible for him to do it to the standard that he and his mother would like. The Applicant completed Year 12 but has not undertaken further study, The Applicant reported that he purposely did not set goals and avoids trying because he has a strong feeling that things would not work out well for him.
Dr Oen opined that the Applicant's mood was slightly low and his affect tense and there was no psychomotor retardation or formal thought disorder, and that severe bullying has resulted in extreme social anxiety and a hermit-like lifestyle. There was no further appointment for the Applicant to see Dr Oen. There was no reference in Dr Oen's report to the Applicant having held firearms licences or that his firearms licences had been revoked. The Applicant did not give evidence about his consultation with Dr Oen.
The Medical Risk Assessment completed by Dr Musa on 13 April 2020 referred to him having only seen the Applicant for ten consultations from 20 November 2018 and indicated that as he had only treated the Applicant for such a limited time, the Applicant's previous doctor would have more information. There is no evidence that further information was sought. Neither Dr Musa nor Dr Oen gave evidence before the Tribunal. There is no reference in the Medical Risk Assessment to the Applicant's anxiety, his panic attacks, his need for some assistance with mobility, communication and self-care or to the substantial assistance he requires with planning. There is no reference to the Applicant's self-care skills being limited due to his intellectual and physical disabilities, that he will require support for the rest of his life and that he will always require attendant care at most community venues and activities.
The evidence before the Tribunal creates a mixed and sometimes conflicting picture of the Applicant and his physical and mental abilities. The Applicant advised Senior Constable Dechaufepie that his cerebral palsy did not affect his ability to hold a firearm and that the only reason that he had not been shooting at a range or gone hunting was because of Covid. The Applicant's Affidavit indicates that his genuine reasons for obtaining his Category A, B and H firearms licences were for the purpose of pursuing his dream of recreational hunting and target shooting as a member of a club but unfortunately due to the COVID-19 pandemic and the various restrictions he had not yet had the opportunity to go hunting or target shooting.
In his evidence before the Tribunal, the Applicant referred to his brother being afraid, as well as to his own anxiety, about the Applicant transporting his firearm in his car to the shooting range, being stopped by police and because of his stuttering, not being able to explain to them why he had a firearm. He also indicated that he had recently become aware that because of his disability, he could apply for a permit that would allow him to use a pistol when he went hunting. In cross-examination, the Applicant's evidence was that could hold a rifle, but it was easier to use a pistol. He later said that he had never shot a rifle and that he would have to use one to find out if he could physically use it.
In her statement, Ms Yammine says she was concerned about the Applicant's reasons for joining because he did not ask a lot of questions which is very unusual. She was also concerned about his ability to communicate when on the range, because he was slow to respond and had difficulty talking to her. She said that she noticed that when talking to him, that his eyes kept rolling up towards the ceiling, which raised further safety concerns. She said that she needs to be comfortable that anyone using her range can understand range instructions, react and respond clearly, and maintain composure whilst on the range.
Ms Yammine did not give evidence before the Tribunal and is clearly not expressing a medical opinion. Whilst Mr McGirr submitted that Ms Yammine's statement "reeked of discrimination", I accept the submission from Mr Zoppo that Ms Yammine runs a shooting range and is concerned about safety and has nothing to gain from making the statement. Ms Yammine's concerns are reflected to some extent in the concerns expressed by the Applicant relating to his anxiety, and his oldest brother's fear, about him being stopped by police whilst transporting his firearms and not being able to explain to them due to his stuttering.
Since completing the Medical Risk Assessment on 13 April 2020, it appears that Dr Musa has continued to treat the Applicant. Having regard to the medical records before the Tribunal, there is now further information available to him about the Applicant, including his anxiety and need for lifelong assistance that does not appear in his records as of 13 April 2020. No evidence was adduced as to whether Dr Musa continues to hold the opinions expressed by him in the Medical Risk Assessment. Dr Oen's report refers to the Applicant's severe social anxiety and a hermit-like lifestyle and seeking NDIS assistance but makes no reference to firearms or to the Applicant having held firearms licences. Neither Dr Musa nor Dr Oen gave evidence before the Tribunal and there is no current medical opinion evaluating the Applicant's risk in holding a firearms licence.

Conclusion

Under s 12 of the Act, the Respondent, and by derivation this Tribunal, must not issue a licence that authorises the possession and use of a firearm unless satisfied that the Applicant has a genuine reason for possessing or using the firearm. As referred to above, I am not satisfied that the Applicant has a genuine reason for possessing or using a firearm. Further, the Applicant's failure to use his firearms during the period that he held his Category AB firearms licence, his evidence about his anxiety and his brother's fear in relation to him transporting firearms due to his stuttering, the statement of Ms Yammine, the medical evidence and the Applicant's conflicting evidence about his current ability to use a rifle raises significant public safety concerns in relation to the Applicant possessing or using firearms. On the evidence before me, I am not able to be satisfied that the Applicant is able possess and use firearms with virtually no risk to public safety.
In light of all of these factors and in the absence of any current medical evidence evaluating the Applicant's risk in holding a firearms licence, I find that it is not in the public interest for the Applicant to continue to hold a firearms licence. Having made these findings, I do not find it necessary to consider the further evidence relating to the Applicant's domestic circumstances.

Orders 1. The decision under review is affirmed. 2. Pursuant to s 64(1)(c) of the CAT Act, the publication of the Confidential Material and confidential exhibits CR3 and CR4, or matters contained in the Confidential Material and confidential exhibits CR3 and CR4 is prohibited. 3. Pursuant to s 64(1)(d) of the CAT Act, the disclosure of the Confidential Material and confidential exhibits CR3 and CR4, or matters contained in the Confidential Material and confidential exhibits CR3 and CR4, is restricted to the Commissioner, the legal representatives for the Commissioner and the tribunal. 4. Pursuant to ss 64(1)(b), 64(1)(c) and 64(1)(d) of the CAT Act, the publication and recording of the confidential hearing of these proceedings, including confidential exhibits CR3 and CR4 and any evidence given during the hearing, is prohibited.

I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales. Registrar DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 18 January 2023

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Judgment (19 paragraphs)

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Cases Cited (10)